United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE, UNITED STATES DISTRICT JUDGE
Jimmy Gardenhire brings this employment action against his
former employee, Johns Manville. Plaintiff alleges that
defendant failed to provide him with reasonable
accommodations in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq. Plaintiff also alleges that defendant
retaliated against him for exercising his rights under the
Family Medical Leave Act (“FMLA”), 29 U.S.C.
§ 2601 et seq, and interfered with his FMLA
rights when it failed to restore him to his job. Finally,
plaintiff alleges that defendant discriminated against him on
the basis of race in violation of Title VII, 42 U.S.C. §
2000e et seq. This matter comes before the court on
defendant's Motion for Summary Judgment (Doc. 35).
Plaintiff responded (Doc. 39) and defendant replied (Doc.
43). For reasons explained below, the court grants
judgment is appropriate if the moving party demonstrates that
“no genuine dispute [about] any material fact”
exists and that it “is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(a). When applying this
standard, the court views the evidence and draws inferences
in the light most favorable to the non-moving party.
Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th
Cir. 2010). A disputed “issue of fact is
‘genuine' ‘if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party' on the issue.” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). An “issue of fact is ‘material'
‘if under the substantive law it is essential to the
proper disposition of the claim' or defense.”
Id. (quoting Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
moving party bears “both the initial burden of
production on a motion for summary judgment and the burden of
establishing that summary judgment is appropriate as a matter
of law.” Kannady v. City of Kiowa, 590 F.3d
1161, 1169 (10th Cir. 2010) (quoting Trainor v. Apollo
Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir.
2002)). To carry this burden, the moving party “need
not negate the non-movant's claim, but need only point to
an absence of evidence to support the non-movant's
claim.” Id. (quoting Sigmon v.
CommunityCare HMO, Inc., 234 F.3d 1121, 1125 (10th Cir.
moving party meets its initial burden, the non-moving party
“may not rest on its pleadings, but must bring forward
specific facts showing a genuine issue for trial as to those
dispositive matters for which it carries the burden of
proof.” Kannaday, 590 F.3d at 1169 (quoting
Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996));
see also Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986); Anderson, 477 U.S. at 248-49. “Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.” Id. “Factual disputes
that are irrelevant or unnecessary will not be
counted.” Id. Further, “the facts must
be identified by reference to affidavits, deposition
transcripts, or specific exhibits incorporated
therein.” Adler, 144 F.3d at 671 (citing
Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d
1022, 1024 (10th Cir. 1992)). “Unsubstantiated
allegations carry no probative weight in summary judgment
proceedings.” Bones v. Honeywell Int'l,
Inc., 366 F.3d 869, 875 (10th Cir. 2004) (citing
Phillips v. Calhoun, 956 F.2d 949, 951 n.3 (10th
Cir. 1992)). To survive summary judgment, the non-moving
party's “evidence, including testimony, must be
based on more than mere speculation, conjecture, or
surmise.” Id. (citing Rice v. United
States, 166 F.3d 1088, 1092 (10th Cir. 1999)).
judgment is not a “disfavored procedural
shortcut.” Celotex, 477 U.S. at 327. To the
contrary, it is an important procedure “designed
‘to secure the just, speedy and inexpensive
determination of every action.'” Id.
(quoting Fed.R.Civ.P. 1).
filed an affidavit contesting many of defendant's
statements of fact. Plaintiff's affidavit includes
immaterial information as well as information that
contradicts prior sworn testimony in his deposition. The
Tenth Circuit has held that courts should “disregard a
contrary affidavit when they conclude that it constitutes an
attempt to create a sham fact issue.” Franks v.
Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986). This is
because “the utility of summary judgment as a procedure
for screening out sham fact issues would be greatly
undermined if a party could create an issue of fact merely by
submitting an affidavit contradicting his own prior
testimony.” Id. “Factors relevant to the
existence of a sham fact issue include whether the affiant
was cross-examined during his earlier testimony, whether the
affiant had access to the pertinent evidence at the time of
his earlier testimony or whether the affidavit was based on
newly discovered evidence, and whether the earlier testimony
reflects confusion which the affidavit attempts to
explain.” Id. These factors convince the court
that plaintiff's affidavit should be disregarded in
determining the motion for summary judgment. None of the
statements in plaintiff's affidavit are based on newly
discovered evidence, nor do they attempt to explain confusion
from his deposition. Instead, plaintiff's affidavit makes
several conclusory statements that contradict his prior
testimony in an apparent attempt to create a genuine issue of
material fact. Under these circumstances, the court concludes
this is an instance, albeit a rare one, where conflicting
testimony between the deposition and the affidavit raises
only sham issues. Accordingly, the court does not consider
these contradictory statements in deciding this motion.
remaining relevant and uncontroverted facts are laid out
below; where controverted, the facts are stated in the light
most favorable to plaintiff as the non-moving party.
Scott v. Harris, 550 U.S. 372, 378 (2007).
Johns Manville manufactures residential and commercial
fiberglass insulation. Plaintiff worked for defendant at its
McPherson, Kansas plant from 2007 through August 2013.
Plaintiff worked as an Inspector Packer.
his employment, plaintiff understood that defendant had
policies prohibiting discrimination, harassment, and
retaliation. Defendant maintained a FMLA policy in its
handbook and on its website throughout plaintiff's
employment. No one ever showed plaintiff the policy.
Nonetheless, plaintiff utilized FMLA leave at least twice
while employed by defendant. First, plaintiff used FMLA leave
when his child was born. Later, plaintiff used FMLA leave
when he became disabled.
defendant's McPherson plant, fiberglass material is
formed and cured into sheets between 48 inches and 15 to 23
feet long. The length of the sheet depends on the order being
filled. Once the sheets are formed and cured, they travel
down a conveyor belt and are inspected for quality. Once
inspected, the sheets are mechanically wound into rolls. The
rolls ranged anywhere from 48 inches 15 to 23 feet long. The
48 inch rolls weighed merely ounces, and heavier products
weighed between 15 and 30 pounds. Once wound, the roll
continues down the conveyor belt and it is inspected a second
time. After it is inspected the second time, each roll is
moved manually from the conveyor belt to the encapsulation
machine for packaging.
Inspector Packer, plaintiff performed assembly line work on
rotating, 12 hour shifts. Generally, Inspector Packers are
responsible for inspecting the insulation sheets before and
after they are wound, physically moving all insulation rolls
into the packing machine, and running the packing equipment.
While plaintiff worked for defendant, defendant's written
description for Inspector Packers listed the essential job
functions of the position. One of these essential functions
was “sets aside defective material for disposition by
others.” Doc. 36-1 at 19. Plaintiff's job duties
thus required him to lift and throw insulation product if it
was defective- which could weigh anywhere from 25 to 55
pounds-sometimes with both hands. Plaintiff testified that
the material was sometimes lighter, and so he could carry the
material with one hand. Id. at 22.
2007, less than three months after plaintiff started working
for defendant, defendant allowed plaintiff to use FMLA leave
even though he was not yet eligible. Then, in late 2011 and
early 2012, plaintiff took additional FMLA leave.
Id. at 33-34.
December 30, 2012, plaintiff suffered several injuries when
he fell at a skating rink, including a broken elbow. On
December 31, 2012, Dr. Byron Grauerholz at the Orthopedic
Sports Health Clinic of Salina imposed work restrictions on
plaintiff, limiting him to light duty, and one-hand jobs.
Plaintiff was approved for both FMLA leave and short-term
disability leave effective December 31, 2012. The short-term
disability leave offered under defendant's policies was
for six months and ran concurrently with plaintiff's FMLA
work restrictions-imposed on December 31, 2012-were supposed
to last for four weeks. But plaintiff's physician had not
yet released him from his work restrictions by April 2013.
Plaintiff exhausted his FMLA leave around the end of March
2013. On April 17, 2013, Dr. James Bogener at the Orthopedic
Sports Health Clinic of Salina wrote a work restriction note
stating that plaintiff still was restricted to “light
duty, one-handed jobs only, no lifting with the left hand for
six weeks.” Doc. 36-1 at 45. Dr. Bogener drafted his
April 17, 2013 note, and all subsequent work restriction
notes, at plaintiff's request. Dr. Bogener assigned work
restrictions based on plaintiff's own reports about his
capabilities. On June 5, 2013, Dr. Bogener wrote another work
restriction note for plaintiff. It indicated that plaintiff
should continue working light duty jobs only, performing only
one-handed jobs, and that he should not lift with his left
hand for six weeks.
exhausted his short-term disability leave on June 29, 2013.
On July 1, 2013, plaintiff applied for permanent and total
disability benefits through The Hartford. When the
application asked him to describe what aspect of his
condition rendered him unable to work, plaintiff stated that
he was too weak in his elbow and back to lift the weight that
his job duties required. Doc. 36-1 at 51. When asked what
important duties of his job he was unable to perform,
plaintiff listed lifting, pulling insulation rolls apart and
laying them in the machine, and changing out things where he
had to bend his arm forward. Id. at 52. The Hartford
denied plaintiff's claim for permanent and total
disability benefits. Plaintiff appealed, and The Hartford
upheld its denial.
29, 2013, Shirley Vawter, defendant's Regional Human
Resources Manager, sent plaintiff a letter. The letter
stated, in relevant part:
I'm sorry over the past several weeks we have not be[en]
able to connect on the telephone. I have been trying to reach
you to discuss your current status with the company. To
recap, you went out on medical leave December 30, 2012. . . .
Your leave continued to be extended several times until the
now current expected return to work date of August 8, 2013.
As we have previously discussed, under our policies, we offer
up to six month[s] of medical leave. . . . In order to
determine what further reasonable accommodations we may be
able to offer you, we require further information from your
Doc. 36-14 at 1. In her letter, Ms. Vawter went on to explain
defendant's reasonable accommodation process and enclosed
a “Request for Medical Information for Reasonable
Accommodation” questionnaire for plaintiff's
physician to complete. Dr. Bogener completed the
questionnaire on August 9, 2013. Dr. Bogener reported that
plaintiff still was restricted to one-handed jobs. Dr.
Bogener also stated that plaintiff's work restrictions
needed to continue for six more weeks, but that he would
reassess plaintiff's status on August 21, 2013.
Ms. Vawter received the completed questionnaire from Dr.
Bogener, she began determining whether defendant could
reasonably accommodate plaintiff. Ms. Vawter reviewed the job
functions of an Inspector Packer. Ms. Vawter also assessed
whether defendant could accommodate plaintiff by assigning
him administrative tasks like copying, but she determined
that defendant did not have enough work of this kind to fill
an eight-hour job. After reviewing the “Medical
Information for Reasonable Accommodation” questionnaire
completed by Dr. Bogener, reviewing the written job
descriptions and physical demand assessment of the Inspector
Packer position, and several consultations with management
personnel, Ms. Vawter concluded that defendant could not
reasonably accommodate plaintiff. Ms. Vawter did not contact
Dr. Bogener directly.
Duerksen works in defendant's Human Resources
(“HR”) department as a liaison between HR and
defendant's employees. She testified in her deposition
that, as far as she knew, defendant did not allow any
employee to come back to work without a full release from a
doctor. Doc. 39-4 at 7. But, she also testified that she
believed that, when the accident is work-related, defendant
sometimes allowed employees with workers' compensation
injuries to work with restrictions. Id. at 25. She
also testified that she does not make any decisions about
employees' FMLA leave. Id. at 2. Those decisions
are made by defendant's HR manager. Id. at 4.
August 21, 2013, Dr. Bogener completed another work
restrictions note for plaintiff. It stated that plaintiff was
still restricted to light duty and one-handed jobs. Ms.
Vawter believed that plaintiff did not have a definite
return-to-work date because his expected return date had been
pushed back repeatedly. She decided to terminate
plaintiff's employment. On August 30, 2013, Ms. Vawter
sent plaintiff a letter stating the following:
We have received your request for reasonable accommodation.
According to the information provided by your physician, you
are not able to lift with your left hand, nor are you able to
perform manual tasks. Given these limitations we cannot
reasonably accommodate these limitations.
Since you are unable to return to work, and we have not heard
from you, we will be terminating your employment effective
today. Should you becom[e] medically clear and able to work,
we encourage you to ...